[Federal Register Volume 59, Number 24 (Friday, February 4, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-2282]


[[Page Unknown]]

[Federal Register: February 4, 1994]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[VA15-1-5995; A-1-FRL-4831-8]

 

Approval and Promulgation of Air Quality Implementation Plans; 
Commonwealth of Virginia-Small Business Stationary Source Technical and 
Environmental Compliance Assistance Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the Commonwealth of Virginia for the purpose of 
establishing a Small Business Stationary Source Technical and 
Environmental Compliance Assistance Program. This SIP revision was 
submitted by the Commonwealth to satisfy the Federal mandate of the 
Clean Air Act (CAA), to ensure that small businesses have access to the 
technical assistance and regulatory information necessary to comply 
with the CAA. The rationale for approving is set forth in this 
document; additional information is available at the address indicated. 
This action is being taken in accordance with the provisions of the 
CAA.

EFFECTIVE DATE: This action will become effective April 5, 1994, unless 
notice is received on or before March 7, 1994, that adverse or critical 
comments will be submitted. If the effective date is delayed, timely 
notice will be published in the Federal Register.

ADDRESSES: Comments may be mailed to Thomas J. Maslany, Director, Air, 
Radiation, and Toxics Division, U.S. Environmental Protection Agency, 
Region III, 841 Chestnut Building, Philadelphia, PA 19107. Copies of 
the documents relevant to this action are available for public 
inspection during normal business hours at the Air, Radiation, and 
Toxics Division, U.S. Environmental Protection Agency, Region III, 841 
Chestnut Building, Philadelphia, PA 19107; Public Information Reference 
Unit, U.S. Environmental Protection Agency, 401 M Street, SW., 
Washington, DC 20460; and Virginia Department of Environmental Quality, 
629 E. Main Street, Richmond Virginia, 23219.

FOR FURTHER INFORMATION CONTACT: Lisa M. Donahue, (215) 597-9781.

SUPPLEMENTARY INFORMATION:

I. Background

    Implementation of the provisions of the CAA will require regulation 
of many small businesses so that areas may attain and maintain the 
National ambient air quality standards (NAAQS) and reduce the emission 
of air toxics. Small businesses frequently lack the technical expertise 
and financial resources necessary to evaluate such regulations and to 
determine the appropriate mechanisms for compliance. In anticipation of 
the impact of these requirements on small businesses, the CAA requires 
that states adopt a Small Business Stationary Source Technical and 
Environmental Compliance Assistance Program (PROGRAM), and submit this 
PROGRAM as a revision to the federally approved SIP. In addition, the 
CAA directs EPA to oversee these small business assistance programs and 
report to Congress on their implementation. The requirements for 
establishing a PROGRAM are set out in section 507 of Title V of the 
CAA. In February 1992, EPA issued Guidelines for the Implementation of 
Section 507 of the 1990 Clean Air Act Amendments, in order to delineate 
the Federal and state roles in meeting the new statutory provisions and 
as a tool to provide further guidance to the states on submitting 
acceptable SIP revisions.
    On November 10, 1992, the Commonwealth of Virginia submitted a 
formal revision to its SIP. The SIP revision consists of a plan for 
establishing a Small Business Stationary Source Technical and 
Environmental Compliance Assistance Program. In order to gain full 
approval, the Commonwealth's submittal must provide for each of the 
following program elements: (1) The establishment of a Small Business 
Assistance Program (SBAP) to provide technical and compliance 
assistance to small businesses; (2) the establishment of a State Small 
Business Ombudsman to represent the interests of small businesses in 
the regulatory process; and (3) the creation of a Compliance Advisory 
Panel (CAP) to determine and report on the overall effectiveness of the 
SBAP. The plan must also determine the eligibility of small business 
stationary sources for assistance in the PROGRAM. The plan includes the 
duties, funding, and schedule of implementation for the three PROGRAM 
components.
    Under sections 10.1-1323 through 10.1-1326 of the Code of Virginia, 
the Department of Air Pollution Control, now the Department of 
Environmental Quality (VA DEQ), is authorized to create and administer 
the Small Business Stationary Source Technical and Environmental 
Compliance Assistance Program. This law authorizes VA DEQ to create and 
administer the SBAP. This law also creates an Office of Small Business 
Ombudsman and a Small Business Environmental Compliance Advisory Board, 
and defines source eligibility for the SBAP.

II. Evaluation of SIP Revision

    Section 507(a) of the CAA sets forth seven requirements that the 
Commonwealth must meet to have an approvable SBAP. Four of these 
requirements are discussed in the first section and the requirement for 
the establishment of an Ombudsman in the second section. Discussion of 
the remaining two requirements follows the third section.

1. Small Business Assistance Program

    The first requirement is to establish adequate mechanisms for 
developing, collecting and coordinating information concerning 
compliance methods and technologies for small business stationary 
sources, and programs to encourage lawful cooperation among such 
sources and other persons to further compliance with the CAA. The 
second requirement is to establish adequate mechanisms for assisting 
small business stationary sources with pollution prevention and 
accidental release detection and prevention, including providing 
information concerning alternative technologies, process changes, 
products and methods of operation that help reduce air pollution.
    Virginia has met these first two requirements by establishing a 
SBAP, located in the VA DEQ Office of Permit Assistance, with the 
responsibility of serving as a clearinghouse for information related to 
compliance methods and control technologies, pollution prevention and 
accidental release prevention and detection. The Virginia SBAP will 
disseminate information on compliance which is easily understandable to 
a nontechnical audience as well as handle inquiries on specific methods 
for achieving compliance with state and Federal regulations.
    The information dissemination will be both proactive and reactive. 
VA DEQ Air Division has presented a series of seminars throughout 
Virginia to explain applicable requirements to small businesses and 
interested citizens. Another series of seminars is being planned, with 
the assistance of Virginia's Department of Economic Development. The VA 
DEQ Air Division will also receive seminar assistance from the Waste 
Management Division and the Emergency Services Division for pollution 
prevention and accidental release prevention, respectively. The SBAP 
manager and staff members will develop public service announcements 
(PSAs) and information packages of print material, addressing all 
topics germane to the SBAP, including compliance, pollution prevention, 
accidental release prevention, legal rights under the CAA, permitting 
assistance, notification of rights, audits, and source modification. 
The PSAs and mailings of print material will begin in November, 1994. 
For the reactive component of the SBAP, a toll-free number will be 
installed by October, 1994. Through outreach techniques, the SBAP staff 
will inform small business stationary sources of their obligations 
under the CAA.
    The third requirement is to develop a compliance and technical 
assistance program for small business stationary sources which assists 
small businesses in determining applicable requirements and in 
receiving permits under the CAA in a timely and efficient manner, and 
the fourth requirement is to develop adequate mechanisms to assure that 
small business stationary sources receive notice of their rights under 
the CAA in such manner and form as to assure reasonably adequate time 
for such sources to evaluate compliance methods and any relevant or 
applicable proposed or final regulation or standards issued under the 
CAA. Virginia has met these requirements through the SBAP. The staff of 
the SBAP will compile a list of technical referrals who will assist 
them in responding to specific inquiries. The VA DEQ's Air Division, 
Office of Compliance and Enforcement (OCE) and regional offices 
currently offer compliance assistance to sources in determining 
applicable requirements of the CAA. The OCE will serve as technical 
experts available for referral by the SBAP in identifying applicable 
rules, determining necessity of a permit, and identifying alternatives 
for achieving compliance with state and local regulations.

2. Ombudsman Office

    Section 507(a)(3) of the CAA requires the designation of a state 
office to serve as the Ombudsman for small business stationary sources. 
The Code of Virginia, section 10.1-1324 authorizes the creation of the 
Ombudsman's office. In VA DEQ, the Director of the Office of Permit 
Assistance serves as Ombudsman. The Ombudsman is appointed by the DEQ's 
Director and reports directly to him or her, and the SBAP manager 
reports to the Ombudsman. Additionally, each of Virginia's seven air 
quality control regional offices will have an appointed liaison.

3. Compliance Advisory Board

    Section 507(e) of the CAA requires the state to establish a 
Compliance Advisory Panel (CAP) that must include two members selected 
by the Governor who are not owners or representatives of owners of 
small businesses; four members selected by the state legislature who 
are owners, or represent owners, of small businesses; and one member 
selected by the head of the agency in charge of the Air Pollution 
Permit Program. Virginia has established a Compliance Advisory Board 
pursuant to the Code of Virginia, section 10.1-1325. It is comprised of 
seven members who are appointed for four-year terms, starting on July 
31, 1993. The makeup of the board is prescribed as is required by 
section 507(e). Members of the board will serve without pay, and 
administrative support for the Board will be funded through the 
ombudsman's office.
    In addition to establishing the minimum membership of the CAP the 
CAA delineates four responsibilities of the Panel: (A) To render 
advisory opinions concerning the effectiveness of the SBAP, 
difficulties encountered and the degree and severity of enforcement 
actions; (B) to review and assure that information for small business 
stationary sources is easily understandable; (C) to develop and 
disseminate the reports and advisory opinions made through the SBAP; 
and (D) to periodically report to EPA concerning the SBAP's adherence 
to the principles of the Paperwork Reduction Act, the Equal Access to 
Justice Act, and the Regulatory Flexibility Act. (Section 507(e)(1)(B) 
requires the CAP to report on the compliance of the SBAP with these 
three statutes. However, since state agencies are not required to 
comply with them, EPA believes that the state program must merely 
require the CAP to report on whether the SBAP is adhering to the 
general principles of these Federal statutes.) The duties and 
responsibilities of Virginia's Compliance Advisory Board under section 
10.1-1326 of the Code of Virginia indicate that it will be responsible 
for all four of the activities listed above.
    The sixth requirement of CAA section 507(a) is to develop adequate 
mechanisms for informing small business stationary sources of their 
obligations under the Act, including mechanisms for referring such 
sources to qualified auditors or, at the option of the Commonwealth, 
for providing audits of the operations of such sources to determine 
compliance with the Act. Virginia's Ombudsman and Compliance Advisory 
Board will develop procedures for referring sources to qualified 
auditors. The procedures will determine how auditors will qualify, what 
the cost will be, the format and content of the audit report, and 
Virginia's actions in the event of a violation discovered during an 
audit. The audit procedures will be completed by July 31, 1994.
    The seventh requirement of CAA section 507(a) is to develop 
procedures for consideration of requests from a small business 
stationary source for modification of: (A) Any work practice or 
technological method of compliance; or (B) the schedule of milestones 
for implementing such work practices or compliance methods. Virginia 
has committed to develop procedures for consideration of requests from 
a source for modification of work practices. The source modification 
procedures will be completed by July 31, 1994.

4. Source Eligibility

    Section 507(c)(1) of the CAA defines the term ``small business 
stationary source'' as a stationary source that:

    (A) Is owned or operated by a person who employs 100 or fewer 
individuals;
    (B) Is a small business concern as defined in the Small Business 
Act;
    (C) Is not a major stationary source;
    (D) Does not emit 50 tons per year (tpy) or more of any regulated 
pollutant; and
    (E) Emits less than 75 tpy of all regulated pollutants.

Code of Virginia section 10.1-1323 duplicates the language of CAA 
section 507(c)(1) in defining eligible stationary sources. It also 
provides for the State Air Pollution Control Board to hear petitions 
for eligibility and eligibility exclusions. The Board will consult with 
both EPA and the Small Business Administration regarding exclusions. 
The Ombudsman and Compliance Advisory Board will be responsible for 
developing eligibility determination procedures.

III. Summary of SIP Revision

    The Commonwealth of Virginia has submitted a SIP revision providing 
for each of the program elements required by CAA section 507. As 
previously stated, the authority to implement the SBAP has been 
delegated to the Department of Environmental Quality. Program 
implementation will begin no later than November 15, 1994. The Director 
of the Department of Environmental Quality will appoint the Ombudsman 
and hire the three staff dedicated to implementing the program at the 
beginning of the Commonwealth's 1993-1994 fiscal year. The Code of 
Virginia, section 10.1-1325 authorizes the creation of a Compliance 
Advisory Board to periodically review the effectiveness of the SBAP. 
All members will be appointed for four year terms, starting no later 
than July 31, 1993. In this action, EPA is approving the SIP revision 
submittal by the Commonwealth of Virginia. Accordingly, Sec. 52.2460 is 
added to 40 CFR part 52, subpart VV-Virginia to reflect EPA's approval 
action and the fact that it is considered part of the Virginia SIP.
    EPA is approving this SIP revision without prior proposal because 
the Agency views this as a noncontroversial amendment and anticipates 
no adverse comments. This action will be effective April 5, 1994, 
unless, by March 7, 1994, notice is received that adverse or critical 
comments will be submitted. If such notice is received, this action 
will be withdrawn before the effective date by simultaneously 
publishing two subsequent notices. One notice will withdraw the final 
action and another will begin a new rulemaking by announcing a proposal 
of the action and establishing a comment period. If no such comments 
are received, the public is advised that this action will be effective 
on April 5, 1994.

Final Action

    EPA is approving Virginia's plan for the establishment of a Small 
Business Stationary Source Technical and Environmental Compliance 
Assistance Program. Accordingly, 40 CFR 52.2460 is added to reflect 
EPA's approval action. The Agency has reviewed this request for 
revision of the federally-approved state implementation plan for 
conformance with the Clean Air Act, including sections 507 and section 
110(a)(2)(E).
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any state implementation plan. Each request for revision to 
the state implementation plan shall be considered separately in light 
of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C.603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    In this action, EPA is approving a state program created for the 
purpose of assisting small businesses in complying with existing 
statutory and regulatory requirements. The program being approved does 
not impose any new regulatory burden on small businesses; it is a 
program under which small businesses may elect to take advantage of 
assistance provided by the state. Therefore, because the EPA's approval 
of this program does not impose any new regulatory requirements on 
small businesses, I certify that it does not have a significant 
economic impact on any small entities affected.
    This action to approve the establishment of a Small Business 
Stationary Source Technical and Environmental Compliance Assistance 
Program in Virginia has been classified as a Table 2 action for 
signature by the Regional Administrator under the procedures published 
in the Federal Register on January 19, 1989 (54 FR 2214-2225) as 
revised by an October 4, 1993 Memorandum from Michael H. Shapiro, 
Acting Assistant Administrator for Air and Radiation. On January 6, 
1989, the Office of Management and Budget waived Table 2 and Table 3 
SIP revisions from the requirements of section 3 of Executive Order 
12291 for a period of two years. EPA has submitted a request for a 
permanent waiver for Table 2 and 3 SIP revisions. OMB has agreed to 
continue the temporary waiver until such time as it rules on EPA's 
request. This request is still applicable under Executive Order 12866, 
which superseded Executive Order 12291 on September 30, 1993.
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action to approve the establishment of a Small Business 
Stationary Source Technical and Environmental Compliance Assistance 
Program in Virginia must be filed in the United States Court of Appeals 
for the appropriate circuit by April 5, 1994. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action may not be challenged later in proceedings to enforce its 
requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Small business 
assistance program.

    Dated: November 10, 1993.
W.T. Wisniewski,
Acting Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.

Subpart VV--Virginia

    2. Subpart VV is amended by adding Sec. 52.2460 to read as follows:


Sec. 52.2460  Small business stationary source technical and 
environmental compliance assistance program.

    On November 10, 1992, the Executive Director of the Virginia 
Department of Air Pollution Control submitted a plan for the 
establishment and implementation of a Small Business Stationary Source 
Technical and Environmental Compliance Assistance Program as a State 
Implementation Plan revision, as required by title V of the Clean Air 
Act. EPA approved the Small Business Stationary Source Technical and 
Environmental Compliance Assistance Program on February 4, 1994, and 
made it a part of the Virginia SIP. As with all components of the SIP, 
Virginia must implement the program as submitted and approved by EPA.
[FR Doc. 94-2282 Filed 2-3-94; 8:45 am]
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